Citation Nr: 21077322 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 19-05 268 DATE: December 29, 2021 ORDER Entitlement to a disability rating of 70 percent for bipolar disorder with generalized anxiety disorder is granted. Entitlement to a total disability rating based on individual (TDIU) due to the Veteran's service-connected bipolar disorder with generalized anxiety disorder is granted. FINDINGS OF FACT 1. The Veteran's bipolar disorder with generalized anxiety disorder manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. It is reasonably shown that the Veteran's service-connected bipolar disorder precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 70 percent for bipolar disorder with generalized anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9432. 2. The criteria for entitlement to a total disability rating based on individual (TDIU) due to the Veteran's service-connected bipolar disorder with generalized anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 2008 to February 2012 with service in Iraq. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in October 2021. 1. Entitlement to a disability rating of 70 percent for bipolar disorder with generalized anxiety disorder. The Veteran seeks a higher rating for his psychiatric disability on the basis that the disability is more severely disabling since the effective date of service connection. The Veteran's bipolar disorder is rated at 50 percent, effective December 11, 2014. His bipolar disorder is currently rated under the General Rating Formula for Mental Disorders. 38C.F.R. §4.130, Diagnostic Code 9432. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted when the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9434. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi,16 Vet. App. 436, 443 (2002). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. The Board notes that in a United States Court of Appeals for Veteran's Claims' (Court) decision, the Court concluded that there are no descriptors, modifiers, or indicators as to suicidal ideation in the 70 percent criteria. The presence of suicidal ideation alone, that is, a Veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas. Bankhead v. Shulkin, 29 Vet. App. 10, 18 (2017). As the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the code, the Board must consider all symptoms of a claimant's condition that affect occupational and social impairment. Mauerhan,16 Vet. App. at 443. If the evidence demonstrates that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the Diagnostic Code, the appropriate, equivalent rating will be assigned. Id. The Board finds that the Veteran's service-connected bipolar disorder has been productive of occupational and social impairment in most areas due, at least in part, to suicidal ideation throughout the appeal. Despite the March 2015 and April 2017 VA examination opinions that the Veteran's psychiatric disorder resulted in, at worst, occupational and social impairment with reduced reliability and productivity, the Board finds that the Veteran's symptoms, chiefly his suicidal ideation, are suggestive of occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Indeed, the Board's determination is in line with the November 2021 VA examination that the Veteran's psychiatric disorder resulted in total occupational and social impairment. See also Mental Status Examination, December 2016. During the October 2021 hearing, the Veteran testified that he experiences symptoms of anger, active and recurrent thoughts of suicide, difficulty concentrating during manic episodes, and difficulty keeping schedules during depressive episodes. He stated that he has weekly manic episodes, has no friends and no one to talk to, takes medication for his psychiatric disability, has difficulty getting along with others, and cannot work due to his condition. Given the Veteran's testimony and the medical evidence of record, the Board finds that the Veteran's bipolar disorder most closely approximates the disability picture contemplated by the 70 percent rating throughout the appeal period. However, a rating in excess of 70 percent is not warranted. Although the November 2021 VA examination opines that the Veteran's psychiatric disorder resulted in total occupational and social impairment, the examiner also noted that the Veteran currently lives with his parents and gets along well with them. The Veteran also reported being in a long-term relationship. Further, the evidence does not show, nor has the Veteran contended, that he experiences symptoms of gross impairment in thought processes or communication; persistent delusions or hallucinations; intermittent inability to perform activities of daily living; grossly inappropriate behavior; memory loss for names of close relatives, own occupation, or own name; or disorientation to time or place. See also VA Examination, March 2015, April 2017, and November 2021. In fact, medical treatment records continue to note reports of having a relationship with his parents and siblings, long-term relationships, and visitation with his daughter. As such, a rating in excess of 70 percent throughout the appeal period is not warranted. 2. Entitlement to a total disability rating based on individual (TDIU) due to the Veteran's service-connected bipolar disorder with generalized anxiety disorder. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran asserts that his service-connected bipolar disorder alone causes him to be unable to secure or follow a substantially gainful occupation. See Hearing Testimony, October 2021. As the Veteran has a 70 percent disability rating for his service-connected bipolar disorder, effective December 11, 2014, the Board notes that his bipolar disorder meets the schedular criteria for an award of TDIU. As such, the issue before the Board is whether the Veteran is capable of gainful employment. 38 C.F.R. § 4.16. On his TDIU application, the Veteran reported that he last worked on September 20, 2020. See VA Form 21-8940, October 2021. The Veteran reported two years of college. During the October 2021 hearing, the Veteran testified that his bipolar disorder makes it difficult for him to keep a job and maintain a regular schedule. He stated that he only has brief periods of employment and any job he has had ended due to his psychiatric disability. The Veteran further testified that he has difficulty getting along with others and can be groggy due to his psychiatric medications, which caused his employers to drug test him. VA examination from March 2015, April 2017, and November 2021 note symptoms of depressed mood, anxiety, suspiciousness, flattened affect, panic attacks, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstance, including work or a worklike setting, impaired judgment, suicidal ideation, and impaired impulse control. After a review of the evidence of record, and resolving any reasonable doubt as mandated by law, the Board finds that the evidence supports that the Veteran's service-connected bipolar disorder prevents him from securing or following substantially gainful employment. (Continued on the next page) In sum, the Board finds that entitlement to a TDIU based on the Veteran's service-connected bipolar disorder alone is warranted beginning September 21, 2020, the day following the last day of full-time employment. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.